11 July 2019
Intruders - what are my rights?
Someone breaking into your home is a terrifying prospect, but do you know what you are allowed to do to protect yourself and others?
In a nutshell, if you fear for your safety or others in the home, you can use force that is reasonable in the circumstances for the purpose of self-defence, protecting another, preventing crime or defence of a property.
What is reasonable force?
Reasonable force is both an objective test of what is considered a reasonable person and a subjective test which takes into account the knowledge of the defendant including what he believed in the circumstances.
In assessing reasonableness, a prosecutor will look at whether the force used was necessary and proportionate in the circumstances and if the force used was reasonable.
The Crown Prosecution Service have released guidance which states ‘You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment.’
Case law also supports this position. Jury’s have been directed that if an individual acts in the heat of the moment, and does no more than he/she honestly and instinctively believes is necessary, then this is the most powerful evidence that the actions were in self-defence. Case law accepts that an individual faced with a terrifying situation cannot, ‘weigh up to a nicety’ the exact level of proportionate force required for self-defence.
The Crime and Courts Act 2013 stated that when in your own home the prosecution must prove beyond reasonable doubt that you have greatly overstepped the mark in terms of your response. This is a high burden for the State to prove.
This change showed that the government accepted that in the heat of the moment people may over react. Chris Grayling, Justice Secretary (2012-2015), said ‘I think houseowners acting instinctively and honestly in self-defence are victims, not criminals. They should be treated that way.’
So I am in much less danger of being prosecuted?
Not quite. You may be prosecuted if you use force that is not considered reasonable, for example carrying on attacking an intruder even if you are no longer in danger. The term ‘reasonable’ should be assessed in the context of the danger you honestly believed you were facing rather than the danger actually faced.
What if I chase them as they run off?
If you are trying to recover stolen property you can still use reasonable force, e.g. a single blow or rugby tackle may be considered reasonable. If you are no longer acting in self-defence the force may not be reasonable. Certainly, when we move into retribution, self-defence is no longer available.
Do I have to wait to be attacked?
No – you can use defensive force if you fear for yourself, or others, in order to ward off an imminent attack.
The Crime and Courts Act 2013 introduced the presumption that someone living in the home, protecting themselves, another person or their property using reasonable force in self-defence was lawful. What is certain is that you could still face the real, and live, issue of facing a prosecution for defending yourself or others. Whilst the changes in the law are to be welcomed they are certainly not a green light for homeowners to act with impunity.